Articles Posted in Surgical Errors

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Almost seven years into this lawsuit, after discovery had been closed and with a summary judgment deadline looming, the defendants in this case, Dr. Partha Ghosh and Wexford Health Sources Inc., raised the affirmative defense of res judicata for the first time. This was an unexpected motion to dismiss an amended complaint. When the plaintiff, Alnoraindus Burton, responded that the defense had been waived or forfeited, while the defendants argued that the 7th Circuit Court of Appeals opinion in Massey v. Helman, 196 F.3d 727 (7th Cir. 1999), required a district court to allow any and all new affirmative defenses whenever a plaintiff amends a complaint in any way. The district court judge in this case agreed with that decision and granted the defendants’ motion to dismiss.

In this appeal, the 7th Circuit reversed and remanded the case. The court stated that the standard for amending pleadings under Federal Rules of Civil Procedure 8(c) and 15 continues to govern the raising of new affirmative defenses even when an amended complaint is filed.

This appeals panel stated that Massey held that a defendant is entitled to add a new affirmative defense prompted by an amended complaint that changes the scope of the case in a relevant way. Massey does not, however, require a district court to allow any and all new defenses and response to any amendment to a complaint, without regard for the substance of the amendment and its relationship to the new defenses. Rather, a district court must exercise its sound discretion under Rules 8 and 15 in deciding whether to allow the late addition of a new affirmative defense.
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Heather Effler was seen at a hospital’s emergency room where she was diagnosed as having an infected urachal cyst. A urachal cyst has been defined as a collection of tissue and fluid between the bladder and the belly button. In most cases, this cyst forms as a remnant of the urachus, a structure normally present in a fetus; the cyst usually closes before birth.

The general surgeon, Dr. Sarkis Aghazarian, performed surgery to remove the cyst. During the surgery, he placed a row of approximately 25 metal surgical staples to close Effler’s bladder dome.

More than two years later, Effler began to bleed and then passed a painful bladder stone. A later cystoscopy showed the presence of additional bladder stones, which then required another laser surgery.
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After undergoing a temporal artery biopsy on an outpatient basis by a general surgeon, Jacqueline Childs developed swelling and paralysis on the right side of her face. She was subsequently diagnosed as having facial nerve neuropathy.

Childs has undergone steroid injection treatments for her facial pain and will require monthly ketamine infusions for the remaining years of her life.

She was in her 50s at the time of the injury and has incurred more than $98,400 in past medical expenses.

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Dr. Gary Lovell, a gynecologist, performed a hysterectomy procedure on Karri Tingey. She was 49 years old at the time. After this procedure, Dr. Lovell reported that he had discovered and repaired a superficial tear on her sigmoid colon. He did not tell Tingey or her husband,

Within three days of that surgery, Tingey returned to the hospital where she was diagnosed as having sepsis and septic shock. She underwent emergency surgery, which revealed a bowel perforation in the upper area of her rectum.

Tingey and her husband sued Dr. Lovell, alleging that the doctor caused injury to Tingey’s bowel during the hysterectomy, misidentified the location of the injury, and repaired it improperly. Dr. Lovell died during the litigation.
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Howard Kinch was 34 when he underwent a laparoscopic cholecystectomy performed by general surgeon Dr. Christopher Touloukian. One week after the surgery, Kinch was re-hospitalized and diagnosed as having bile in his abdomen.

Kinch was transferred to another hospital so that he could receive an external drain. The drain mechanism later dislodged, which led to the development of sepsis that required a procedure to reinstall the drain. He now must have numerous drain replacement procedures every year and requires daily flushing of this device.

Kinch and his wife sued Dr. Touloukian and his employer alleging that the doctor transected the common hepatic bile duct during the surgery and chose not to adequately visualize the surgical field.
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Beekman Youngblood, M.D., is a board-certified anesthesiologist who appealed a circuit court judgment entered on a jury verdict in favor of Anthony Martin, as personal representative of the estate of Lanesha Martin.

On May 25, 2006, Lanesha Martin underwent outpatient sinus surgery at Vaughan Regional Medical Center. During that surgery, she was administered general anesthesia and was intubated (i.e., an endotracheal tube was inserted into her throat to help her breathe).

After the surgery, she developed pulmonary edema while in the post-anesthesia care unit and began experiencing problems with her oxygen saturation.
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Gloria Tirado and Christian Tirado were plenary guardians of Gina Gutierrez, who brought a medical malpractice case against Drs. Konstantin Slavin and Gerald Oh. In the suit, it was alleged that the doctors negligently performed spinal surgery on Gutierrez and were negligent in their follow-up care.

In answer, Dr. Slavin raised an affirmative defense of contributory negligence for Gutierrez’s failure to seek treatment and follow medical advice. The case went to a jury trial and during plaintiffs’ closing argument, Dr. Slavin and his counsel came to the aid of a suddenly ill juror.

The plaintiffs moved for a mistrial the following morning, which the trial court denied. The trial court then entered judgment on the jury’s verdict in favor of Dr. Slavin and denied plaintiffs’ motion for a new trial. An appeal was taken in which the Illinois Appellate Court affirmed the entry of judgment in favor the defendant physicians.

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Ms. Doe, 52, went to a hospital emergency room complaining of abdominal pain. She underwent an ultrasound and was diagnosed as having gallstones. Dr. Roe, a general surgeon, performed a laparoscopic cholecystectomy, during which the doctor encountered an unusual amount of bleeding. The surgeon converted to an open procedure where it was revealed that Ms. Doe’s common bile duct had been clipped and transected. This is the surgical procedure when removing a patient’s gallbladder becomes necessary.

Ms. Doe was transferred to another facility where she underwent emergency surgery to repair injuries to her common bile duct, the hepatic duct and right hepatic artery. Ms. Doe was hospitalized for ten days and the recovery took several months.

Ms. Doe continues to suffer discomfort and pain. She sued Dr. Roe, alleging that the doctor negligently did the laparoscopic surgery by misidentifying bodily structures for cutting. Continue reading

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Ronald Fairrow, 56, underwent an appendectomy at Riverside Methodist Hospital. The surgical resident, Dr. Alon Geva, and nurse Megan Conrad attempted to insert a urinary catheter but encountered resistance.

Dr. Geva and Conrad made several more attempts until another doctor came and properly inserted the catheter.

Several days after the appendectomy surgery, Fairrow suffered severe bleeding in his urethra and later underwent surgery to stop the blood flow. Fairrow was unable to urinate due to the urethral damage and required Foley and supra pubic catheters for several months until he underwent urethral reconstruction surgery.
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Johnny Terrell Sledge, 24, suffered a gunshot wound to his back. He was taken to the DCH Regional Medical Center emergency room where an emergency room physician recognized the need for surgery.

On-call trauma surgeon Dr. Bradley Bilton was paged repeatedly but responded that he was in surgery and that someone else should be called to assist Sledge. The hospital staff could not locate another surgeon; Dr. Bolton was paged again.

Instead of coming to the emergency room after completing the surgical procedure that he was involved in, Dr. Bilton started a second elective surgery instead of coming to the aid of Sledge.
Unfortunately, Sledge died while waiting for an emergency laparotomy. He is survived by his family.
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